A bad week at Guantánamo: lawyers are denied access to detainees, and the Military Commission show trials stumble back to life

27.9.07

One thing you learn when studying Guantánamo is that nothing can ever be taken for granted, and the events of the last week have demonstrated, yet again, that this is the case. As lawyers for the Guantánamo detainees prepare, like a legal version of Groundhog Day, for a climactic Supreme Court showdown with the administration over the rights of the detainees to challenge the basis of their detention (replaying scenes which were first enacted over three years ago, in Rasul v. Bush, but which were derailed in last fall’s Military Commissions Act), another version of this seemingly endless saga –- focusing on similar challenges, in the District Court, to another dubious piece of post-Rasul legislation, the Detainee Treatment Act of 2005 –- hit a brick wall last Thursday.

In Washington, District Court Judge Ricardo Urbina dismissed 16 lawsuits, challenging the indefinite imprisonment of at least 40 detainees in Guantánamo, which had the knock-on effect of denying lawyers access to their clients. Crowing smugly, Justice Department lawyer Andrew Warden declared after the decision, “In light of this development, counsel access (both legal mail and in-person visits) is no longer permitted.”

That this is possible, 39 months after the Supreme Court ruled decisively, in Rasul v. Bush, that the detainees had the right to challenge the basis of their detention, and that habeas corpus was, as Justice John Stephens so memorably described it, “a writ antecedent to statute … throwing its roots deep into the genius of our common law,” demonstrates, succinctly, how the Bush administration has, for the last six years, shamed the “genius” of the American legal system by reducing it to a game of legislative ping-pong.

Although lawyers for the detainees remain confident that the Supreme Court will rule in the detainees’ favor (probably in spring 2008), this is a terrible setback for the detainees in question. Imprisoned without charge or trial for over five and a half years, they have no other contact with the outside world apart from through the minimal ministrations of the International Committee of the Red Cross, and their lawyers are often their only lifeline. This process is made that much harder when, year after year, the lawyers are driven to admit to their clients that, despite widespread opposition to the existence of Guantánamo, their attempts to bring them justice –- a day in court before a judge who can impartially weigh the evidence set before him by the government –- are repeatedly obstructed by the administration.

In all likelihood, Judge Urbina’s ruling will not shut down the lawyer-client relationship entirely. As reported by the Associated Press, Andrew Warden “outlined a series of legal steps that would be required before the attorneys could resume contact with the detainees.” After jumping through hoops and being generally belittled, more restrictive arrangements will be arranged with the lawyers, but they may come too late for the Libyan detainee Abdul Rauf al-Qassim, whose story I first reported here. Cleared by a military administrative board after five years at Guantánamo, al-Qassim, a deserter from the Libyan army, had spent a decade living in Afghanistan and Pakistan without raising arms against anyone, and was kidnapped from a house in Lahore, Pakistan, in May 2002, after fleeing Afghanistan with his pregnant Afghan wife.

Al-Qassim has spent most of this year fighting cynical attempts by the administration to return him to the country of his birth, where he has legitimate fears that he will be tortured. Wells Dixon, one of his lawyers at the Center for Constitutional Rights, explained that he would “most likely not be able to complete [the new] measures in time for a scheduled visit” with al-Qassim next month, which he described as “crucial,” because he was “in the midst of trying to prevent the government from transferring [him] back to Libya.” In measured tones, he added, “This is just the latest example of the government’s efforts to frustrate counsel access to detainees.” In a press release, another CCR attorney, Shayana Kadidal, spelt out al-Qassim’s plight in stronger terms: “We need to remember that this is a man the government has cleared for release –- as close to a statement of innocence as the government will ever issue. Abdul Rauf should never have been taken to Guantánamo in the first place, and the courts should not allow the government to ‘disappear’ him into Libya in order to cover up its own mistake.”

In a second, and far more shocking development, the Military Commissions at Guantánamo –- the widely derided show trials, which purport to provide justice, while relying on secret evidence obtained through torture –- stumbled back to life on Monday. Condemned as illegal under US law and the Geneva Conventions by the Supreme Court in June 2006, the Commissions were reinstated in the Military Commissions Act last fall, but were derailed again three months ago, when the military judges appointed to preside over the cases of child soldier Omar Khadr and Salim Hamdan, one of Osama bin Laden’s chauffeurs, shut down the trials, arguing, correctly, that the MCA had mandated them to try “illegal enemy combatants,” whereas the system that had made them eligible for trial –- the Combatant Status Review Tribunals, “administrative” hearings which also relied on secret evidence obtained through unknown means –- had only declared them to be “enemy combatants.”

After a farcical interlude, in which the administration declared petulantly that it would appeal the judges’ decisions, and was then pilloried when it transpired that the appeals court in question had not yet been established, the Court of Military Commissions Review convened a month ago in a borrowed courtroom near the White House.

Announcing their verdict on Monday, the court’s three military judges –- all appointed by the Pentagon –- agreed with Khadr’s military judge, Col. Peter Brownback, that Khadr’s classification as an “enemy combatant” at his Combatant Status Review Tribunal in Guantánamo “failed to meet the requirements for jurisdiction set forth in the Military Commissions Act,” but explained that Brownback had “erred” in ruling that a CSRT was required to determine that Khadr was an “unlawful enemy combatant” as a pre-requisite for bringing charges against him under the MCA. They added, moreover, that he had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence.

The decision was immediately condemned by human rights activists. Jameel Jaffer, the director of the American Civil Liberties Union’s national security project, declared, “This ruling may be a step forward for the military commissions but it’s a step backwards for the rule of law. While there are prisoners at Guantánamo who should be tried for war crimes, they should be tried under rules that are fair and that will be perceived as fair. The current rules fail this test. They permit the use of secret evidence, allow the introduction of coerced evidence, [and] limit the right of defendants to be represented by counsel of their choosing … A ruling that allows these tribunals to move forward is nothing to celebrate.”

More importantly, the verdict was also condemned by Khadr’s defense lawyers, led by Lt. Cmdr. William Kuebler, the principled military attorney, who, in the past few months, has described the Commissions as rigged, ridiculous, unjust, farcical, a sham, and a lawless process. As soon as Pentagon spokesman Bryan Whitman announced that Khadr’s trial had been revived, and that it was the Pentagon’s intention “to move out in an expeditious manner to get the military commission cases to trial,” Kuebler responded by saying that Khadr’s legal team would appeal, asking a civilian court in Washington to block the trial. “This court,” Kuebler explained, referring to the Court of Military Commissions Review, “had the chance to bring some degree of legitimacy to an otherwise lawless process,” adding, pointedly, “It failed to do so.” In a statement, he and Khadr’s other lawyers –- Dennis Edney and Nathan Whitling –- accused the military judge of “prohibited off-the-record coordination,” and explained that the date set by the Pentagon for Khadr’s trial to begin –- October 11 –- failed to allow them enough time to challenge the case. “It is the latest evidence of the government’s determination to rush forward with the flawed military commission process at breakneck speed, disregarding whatever rights of the accused that may get in the way,” Kuebler declared.

Expect more fireworks to follow from the latest in an increasingly long line of government-appointed military lawyers to have turned on their masters in the most principled manner possible. Those in any doubt that Lt. Cmdr. Kuebler means what he says should recall that in June he explained to a GQ reporter, “I think things have been done to people that under any definition except this administration’s very narrow one would be torture.”

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